Manny: right to remain silent?

Far be it from a legal publication to question a person’s absolute right to keep his mouth shut.

But in the aftermath of former Red Sox slugger Manny Ramirez’s recent 50-game steroid suspension by Major League Baseball, some local lawyers are questioning why he opted not to fight back and appeal the punishment.

After all, let’s remember that Ramirez belongs to a players’ union, which appeals virtually everything that happens to its members.

In his only public comments since accepting his punishment, the 2004 World Series Most Valuable Player, in a carefully crafted written statement, blamed the failed test on medication an unnamed doctor had prescribed for a health issue.

“[The doctor] gave me a medication, not a steroid, which he thought was OK to give me,” Ramirez said. “Unfortunately, the medication was banned under our drug policy. Under the policy, that mistake is now my responsibility. I have been advised not to say anything more for now.”

Assuming one is willing to make the leap that Ramirez had a legitimate non-steroid-related reason for taking a women’s fertility drug, which happens to moonlight as a banned masking agent, wouldn’t his natural reaction be to go out and point the finger at the person who gave it to him?

“Any athlete who hasn’t used a banned substance, or has a good reason for having ingested a banned substance, really has an obligation to come forward and prove he didn’t do it to clear his name,” says Michael Paris, of Boston’s Nystrom, Beckman & Paris.

Paris knows better than most of what he speaks. In 2007, he and colleague William C. Nystrom represented tennis pro Guillermo Coria after he was suspended from the game for allegedly testing positive for a banned substance.

In a $10 million lawsuit against a drug manufacturer that settled three days into trial, the duo were able to vindicate their client. An otherwise undisclosed settlement included a statement from the judge that Coria failed the test due to “inadvertent and unknowing ingestion of a banned substance.”

“There is a presumption out there that athletes who get caught may have used banned substances,” Paris says, “and the only way to counter that is to go forward with litigation and prove not only in the court of public opinion but also in the courtroom that he did not knowingly and intentionally take a banned substance.”

If Ramirez’s dog-ate-my-homework defense were true, Ralph F. Sbrogna, of Worcester’s Fletcher Tilton & Whipple, says the slugger could file suit against his mystery doctor for negligence or misrepresentation.

“I suppose if Manny were to have asked the physician, ‘Do you know whether or not this substance is okay?’ and the physician said it was, then yes, he could have a claim,” he says. “But the basic question that would have to be sorted out was: What knowledge did the physician have, or what knowledge can you impart on the physician?”

Sbrogna believes that the key to the outcome of the case comes down to the precise conversation that took place between patient and doctor.

“If Manny’s statement is to be interpreted to mean that the physician specifically said to him that the drug was OK, then Manny could imply that this guy knew what the rules and regulations were and that it was OK to rely on his judgment,” he says. “If Manny were to then have relied on that to his detriment, there would be arguably an action for misrepresentation.”

While Sbrogna says the notoriety from taking on a case like that would be tempting, an admitted Red Sox fan, he says he would likely pass.

“With his reputation in terms of who he is and what he is, a jury is not going to have much sympathy for a guy who is allowing himself to be injected with a substance like that,” he says. “I think they would place the onus on Manny, regardless of what the doctor may have said, to make sure in his mind that his doctor knew what he was talking about.”

One comment

It seems that Manny tested positive for elevated levels of synthetic testosterone in spring training. Manny planned to appeal this. Shortly before the appeal, his medical records were provided to MLB pursuant to the collective bargaining agreement. The records contained the prescription for the banned substance. With MLB in possession of those records, Manny lost all hope for a successful appeal.

You would expect whoever is advising Manny to have a better understanding of the collective bargaining agreement.